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A Bill for an Act to establish a scheme to improve the transparency of activities undertaken on behalf of foreign principals, and for related purposes
Administered by: Attorney-General's
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Registered 18 Dec 2017
Introduced HR 07 Dec 2017

 

2016‑2017

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Foreign Influence Transparency Scheme Bill 2017

 

No.      , 2017

 

(Attorney‑General)

 

 

 

A Bill for an Act to establish a scheme to improve the transparency of activities undertaken on behalf of foreign principals, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

Division 1—Preliminary                                                                                              1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Object.................................................................................................. 2

4............ Simplified outline of this Act.............................................................. 2

5............ Extension to external Territories.......................................................... 3

6............ Extraterritoriality................................................................................. 3

7............ Constitutional basis and severability................................................... 3

8............ Application to Commonwealth, States and Territories........................ 5

9............ Concurrent operation of State and Territory laws................................ 5

Division 2—Definitions                                                                                                6

10.......... Definitions.......................................................................................... 6

11.......... Undertaking activity on behalf of a foreign principal........................ 12

12.......... Activity for the purpose of political or governmental influence......... 13

13.......... Communications activity................................................................... 15

14.......... Purpose of activity............................................................................ 16

Part 2—Registration under the scheme                                                                  17

Division 1—Simplified outline of this Part                                                       17

15.......... Simplified outline of this Part............................................................ 17

Division 2—Requirement to register                                                                  19

16.......... Requirement to register..................................................................... 19

17.......... When a person is registered under the scheme.................................. 19

18.......... Persons who are liable to register...................................................... 19

19.......... Ceasing to be liable to register........................................................... 20

Division 3—Registrable activities                                                                        21

20.......... Registrable activities: parliamentary lobbying on behalf of foreign government       21

21.......... Registrable activities: activities in Australia for the purpose of political or governmental influence         21

22.......... Registrable activities: recent Cabinet Ministers................................. 22

23.......... Registrable activities: recent Ministers, members of Parliament and other holders of senior Commonwealth positions.......................................................................................................... 22

Division 4—Exemptions                                                                                            24

24.......... Exemption: humanitarian aid or assistance........................................ 24

25.......... Exemption: legal advice or representation......................................... 24

26.......... Exemption: diplomatic, consular or similar activities......................... 24

27.......... Exemption: religion........................................................................... 25

28.......... Exemption: news media.................................................................... 25

29.......... Exemption: commercial or business pursuits.................................... 26

30.......... Exemption: prescribed circumstances................................................ 27

Division 5—End of registration                                                                            28

31.......... Notice of end of liability to register................................................... 28

32.......... End of registration............................................................................. 29

Part 3—Responsibilities of registrants under the scheme                           30

Division 1—Simplified outline of this Part                                                       30

33.......... Simplified outline of this Part............................................................ 30

Division 2—Reporting to the Secretary                                                           31

34.......... Reporting material changes in circumstances.................................... 31

35.......... Reporting donor activity in Australia for the purpose of political or governmental influence (other than in voting period).......................................................................................................... 32

36.......... Reporting on registration review when voting period begins............ 33

37.......... Reporting registrable activity during voting periods.......................... 34

Division 3—Other responsibilities                                                                       36

38.......... Disclosure in communications activity.............................................. 36

39.......... Annual renewal of registration.......................................................... 36

40.......... Keeping records................................................................................ 37

Part 4—Obtaining and handling scheme information                                  39

Division 1—Simplified outline of this Part                                                       39

41.......... Simplified outline of this Part............................................................ 39

Division 2—Register of scheme information                                                  40

42.......... Secretary must keep a register........................................................... 40

43.......... Certain information to be made publicly available............................. 41

44.......... Secretary may correct or update information in the register............... 41

Division 3—Secretary’s powers to obtain information and documents 42

45.......... Notice requiring information to satisfy Secretary whether person is liable to register under the scheme  42

46.......... Notice requiring information relevant to scheme............................... 43

47.......... Self‑incrimination.............................................................................. 44

48.......... Copies of documents......................................................................... 44

49.......... Retention of documents..................................................................... 44

Division 4—Communicating and dealing with scheme information  46

50.......... Scheme information.......................................................................... 46

51.......... Scheme officials................................................................................ 46

52.......... Authorisation—purposes of scheme................................................. 47

53.......... Authorisation—other purposes......................................................... 47

54.......... Authorisation—secondary communication of or dealing with information              48

55.......... Authorisation—information publicly available.................................. 48

Part 5—Enforcement                                                                                                         49

56.......... Simplified outline of this Part............................................................ 49

57.......... Failure to apply for or maintain registration...................................... 49

58.......... Failure to fulfil responsibilities under the scheme............................. 51

59.......... Failure to comply with notice requiring information......................... 52

60.......... False or misleading information or documents.................................. 53

61.......... Destruction etc. of records................................................................ 54

Part 6—Miscellaneous                                                                                                       56

62.......... Simplified outline of this Part............................................................ 56

63.......... Charges............................................................................................. 56

64.......... Treatment of partnerships.................................................................. 57

65.......... Treatment of other unincorporated bodies......................................... 57

66.......... Approvals......................................................................................... 57

67.......... Delegations....................................................................................... 58

68.......... Agreements....................................................................................... 58

69.......... Annual report.................................................................................... 58

70.......... Review of operation of the scheme................................................... 59

71.......... Rules................................................................................................. 59

 


A Bill for an Act to establish a scheme to improve the transparency of activities undertaken on behalf of foreign principals, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

Division 1Preliminary

1  Short title

                   This Act is the Foreign Influence Transparency Scheme Act 2017.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Object

                   The object of this Act is to provide for a scheme for the registration of persons who undertake certain activities on behalf of foreign governments, foreign businesses and other foreign principals, in order to improve the transparency of their activities on behalf of those foreign principals.

4  Simplified outline of this Act

A person who undertakes activities on behalf of a foreign principal may be liable to register under the scheme established by this Act, depending on who the foreign principal is, the activities the person undertakes and in some cases on whether the person has recently held a senior Commonwealth position (including as a member of Parliament).

Certain information about registrants and their activities is made publicly available.

A registrant has various responsibilities under the scheme. In general terms, these responsibilities are aimed at ensuring that:

       (a)     the Secretary has up to date information about the activities of registrants, especially during voting periods for federal elections; and

      (b)     if a registrant makes disbursements or communications on behalf of the foreign principal, appropriate disclosures are made.

Penalties apply for persons who are liable to register under the scheme and do not register, and for registrants who fail to fulfil their responsibilities under the scheme.

5  Extension to external Territories

                   This Act extends to every external Territory.

6  Extraterritoriality

                   This Act applies both within and outside Australia.

7  Constitutional basis and severability

Constitutional basis

             (1)  This Act relies on:

                     (a)  the Commonwealth’s legislative powers under paragraphs 51(xxix) and (xxxix) of the Constitution; and

                     (b)  any implied legislative powers of the Commonwealth.

Additional and severable operation of Act

             (2)  Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.

             (3)  To avoid doubt, none of the following subsections of this section limit the operation of any other subsection of this section.

Trade and commerce

             (4)  This Act has the effect it would have if its operation were expressly confined to activities undertaken in the course of trade and commerce to which paragraph 51(i) of the Constitution applies.

Communications

             (5)  This Act has the effect it would have if its operation were expressly confined to activities undertaken using a service to which paragraph 51(v) of the Constitution applies.

Corporations

             (6)  This Act has the effect it would have if its operation were confined to activities undertaken by:

                     (a)  corporations to which paragraph 51(xx) of the Constitution applies; and

                     (b)  persons undertaking activities on behalf of corporations to which paragraph 51(xx) of the Constitution applies.

Census and statistics

             (7)  This Act has the effect it would have if its operation were expressly confined to obtaining information for purposes relating to census and statistics within the meaning of paragraph 51(xi) of the Constitution.

Aliens

             (8)  This Act has the effect it would have if its operation were expressly confined to activities undertaken on behalf of persons who are aliens within the meaning of paragraph 51(xix) of the Constitution.

External affairs

             (9)  This Act has the effect it would have if its operation were expressly confined to activities undertaken beyond the limits of the States and Territories.

           (10)  This Act has the effect it would have if its operation were expressly confined to give effect to Australia’s rights and obligations under an agreement with one or more foreign countries.

Territories

           (11)  This Act has the effect it would have if its operation were expressly confined to activities undertaken in a Territory.

8  Application to Commonwealth, States and Territories

                   Nothing in this Act requires any of the following to register under the scheme:

                     (a)  the Crown in right of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory;

                     (b)  a department or instrumentality of the Commonwealth or of a State or Territory mentioned in paragraph (a).

9  Concurrent operation of State and Territory laws

                   This Act is not intended to exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.

Division 2Definitions

10  Definitions

                   In this Act:

approved form: see paragraph 66(a).

approved manner: see paragraph 66(b).

arrangement includes a contract, agreement, understanding or other arrangement of any kind, whether written or unwritten.

Australian police force means:

                     (a)  the Australian Federal Police; or

                     (b)  a police force or police service of a State or Territory.

becomes liable to register: see subsection 18(1).

benefit includes any advantage and is not limited to property.

broadcaster means:

                     (a)  the Australian Broadcasting Corporation referred to in section 5 of the Australian Broadcasting Corporation Act 1983; or

                     (b)  the Special Broadcasting Service Corporation referred to in section 5 of the Special Broadcasting Service Act 1991; or

                     (c)  the holder of a licence allocated by the Australian Communications and Media Authority under the Broadcasting Services Act 1992; or

                     (d)  a person making a broadcast under the authority of a class licence determined by the Australian Communications and Media Authority under the Broadcasting Services Act 1992.

by‑election has the same meaning as in Part XVB of the Commonwealth Electoral Act 1918.

candidate has the same meaning as in the Commonwealth Electoral Act 1918. In particular, a person who is, at a time, taken to be a candidate in an election within the meaning of that Act is taken to be a candidate at that time for the purposes of this Act.

ceases to be liable to register: see section 19.

Commonwealth public official has the same meaning as in the Criminal Code.

communications activity: see subsection 13(1).

controlled: a person is controlled by another person (the controller) if:

                     (a)  in relation to a company—one or more of the following applies:

                              (i)  the controller holds more than 50% of the issued share capital of the company;

                             (ii)  the controller holds more than 50% of the voting power in the company;

                            (iii)  the controller is in a position to appoint more than 50% of the company’s board of directors;

                            (iv)  the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the controller;

                             (v)  the controller is in a position to exercise control over the company; and

                     (b)  for any other kind of person—either of the following applies:

                              (i)  the members of the executive committee (however described) of the person are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the controller;

                             (ii)  the controller is in a position to exercise control over the person.

deal with information or an article has the same meaning as in Part 5.6 of the Criminal Code (see subsections 90.1(1) and 121.1(1) of the Code).

designated vote means:

                     (a)  a referendum; or

                     (b)  a vote, survey, or other process for the expression of opinions, of the kind prescribed by the rules for the purposes of this paragraph.

donor activity: a person undertakes donor activity if:

                     (a)  the person disburses money or things of value; and

                     (b)  neither the person nor a recipient of the disbursement is required to disclose it under Division 4, 5 or 5A of Part XX of the Commonwealth Electoral Act 1918.

electoral donations threshold means $13,500.

federal election means a House of Representatives election or a Senate election within the meaning of the Commonwealth Electoral Act 1918.

foreign business means a person (other than an individual) that:

                     (a)  either:

                              (i)  is constituted or organised under a law of a foreign country or of part of a foreign country; or

                             (ii)  has its principal place of business in a foreign country; and

                     (b)  is not a foreign government, foreign public enterprise or foreign political organisation.

foreign country means any country other than Australia or an external Territory (whether or not an independent sovereign State).

foreign government means:

                     (a)  the government of a foreign country or of part of a foreign country; or

                     (b)  an authority of the government of a foreign country; or

                     (c)  an authority of the government of part of a foreign country; or

                     (d)  a foreign local government body or foreign regional government body.

foreign political organisation includes a foreign political party.

foreign principal means:

                     (a)  a foreign government;

                     (b)  a foreign public enterprise;

                     (c)  a foreign political organisation;

                     (d)  a foreign business;

                     (e)  an individual who is neither an Australian citizen nor a permanent Australian resident.

foreign public enterprise means a company or any other person (other than an individual) controlled by the government of a foreign country or of part of a foreign country.

general political lobbying means lobbying any one or more of the following:

                     (a)  a Commonwealth public official;

                     (b)  a Department, agency or authority of the Commonwealth;

                     (c)  a registered political party;

                     (d)  a candidate in a federal election;

other than lobbying that is Parliamentary lobbying.

influence includes affect in any way.

liable to register: see section 18.

lobby includes:

                     (a)  communicate, in any way, with a person or a group of persons for the purpose of influencing any process, decision or outcome; and

                     (b)  represent the interests of a person, in any process.

on behalf of a foreign principal: see section 11.

parliamentary lobbying means lobbying any one or more of the following persons:

                     (a)  a member of the Parliament;

                     (b)  a person employed under section 13 or 20 of the Members of Parliament (Staff) Act 1984.

periodical: see subsection 13(5).

person means any of the following:

                     (a)  an individual;

                     (b)  a body corporate;

                     (c)  a body politic;

                     (d)  a partnership;

                     (e)  an association (whether or not incorporated);

                      (f)  an organisation (whether or not incorporated);

                     (g)  any combination of individuals who together constitute a body;

                     (h)  any body of a kind prescribed by the rules;

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law or not constituted under a law at all.

Note:          See sections 64 and 65 for how the scheme applies to partnerships and other bodies that are not legal persons.

political or governmental influence: see section 12.

purpose has a meaning affected by section 14.

recent Cabinet Minister, at a particular time, means a person:

                     (a)  who was a Minister and a member of the Cabinet at any time in the 3 years before the particular time; and

                     (b)  is not at the particular time a Minister, member of the Parliament or holder of a senior Commonwealth position.

recent holder of a senior Commonwealth position, at a particular time, means a person:

                     (a)  who held a senior Commonwealth position at any time in the 18 months before the particular time; and

                     (b)  is not at the particular time a Minister, member of the Parliament or holder of a senior Commonwealth position.

recent Minister or member of Parliament, at a particular time, means a person:

                     (a)  who was a Minister or a member of the Parliament at any time in the 3 years before the particular time; and

                     (b)  is not at the particular time a Minister, member of the Parliament or holder of a senior Commonwealth position.

referendum has the same meaning as in the Referendum (Machinery Provisions) Act 1984.

registered under the scheme in relation to a foreign principal: see section 17.

registered political party has the same meaning as in the Commonwealth Electoral Act 1918.

registrable activity in relation to a foreign principal: see sections 20, 21, 22 and 23.

registrable arrangement means an arrangement between a person and a foreign principal for the person to undertake an activity that, if undertaken by the person, would be registrable in relation to the foreign principal.

registrant means a person who is registered under the scheme.

renewal period: see subsection 39(3).

rules means rules made under section 71.

scheme means this Act, the rules, the Foreign Influence Transparency Scheme (Charges Imposition) Act 2017 and the regulations made under that Act.

scheme information: see section 50.

scheme official: see subsection 51(1).

Secretary means the Secretary of the Department.

senior Commonwealth position means any of the following positions:

                     (a)  agency head (within the meaning of the Public Service Act 1999);

                     (b)  deputy agency head (however described);

                     (c)  an office established by or under a law of the Commonwealth and equivalent to that of agency head or deputy agency head.

voting period means any of the following:

                     (a)  for a federal election—the period:

                              (i)  beginning on the day of the issue of the writ for the election under the Commonwealth Electoral Act 1918; and

                             (ii)  ending at the time determined in accordance with that Act to be the latest time on polling day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the election;

                     (b)  for a referendum—the period:

                              (i)  beginning on the day of the issue of the writ for the referendum under the Referendum (Machinery Provisions) Act 1984; and

                             (ii)  ending at the time determined in accordance with that Act to be the latest time on the voting day for the referendum at which an elector in Australia could enter a polling booth for the purpose of voting at the referendum;

                     (c)  for a vote, survey or process prescribed by the rules for the purposes of paragraph (b) of the definition of designated vote—the period prescribed by the rules.

11  Undertaking activity on behalf of a foreign principal

             (1)  A person undertakes an activity on behalf of a foreign principal if the person undertakes the activity:

                     (a)  under an arrangement with the foreign principal; or

                     (b)  in the service of the foreign principal; or

                     (c)  on the order or at the request of the foreign principal; or

                     (d)  under the control or direction of the foreign principal; or

                     (e)  with funding or supervision by the foreign principal; or

                      (f)  in collaboration with the foreign principal.

             (2)  For the purposes of subsection (1), it does not matter whether consideration is payable.

             (3)  Without limiting subsection (1), a person undertakes an activity on behalf of a foreign principal if both the person and the foreign principal knew or expected that:

                     (a)  the person would or might undertake the activity; and

                     (b)  that the person would or might do so in circumstances set out in section 20, 21, 22 or 23 (whether or not the parties expressly considered the existence of the scheme).

12  Activity for the purpose of political or governmental influence

             (1)  A person undertakes an activity for the purpose of political or governmental influence if a purpose of the activity (whether or not there are other purposes) is to influence, directly or indirectly, any aspect (including the outcome) of any one or more of the following:

                     (a)  a process in relation to a federal election or a designated vote;

                     (b)  a process in relation to a federal government decision;

                     (c)  proceedings of a House of the Parliament;

                     (d)  a process in relation to a registered political party;

                     (e)  a process in relation to a member of the Parliament who is not a member of a registered political party;

                      (f)  a process in relation to a candidate in a federal election who is not endorsed by a registered political party.

             (2)  Without limiting subsection (1), an activity is taken to be for the purpose of political or governmental influence if a purpose of the activity is to influence an aspect of a process or proceedings mentioned in that subsection by influencing the public, or a section of the public, in relation to the process or proceedings.

Examples of federal government decisions

             (3)  For the purposes of paragraph (1)(b), decisions made by any of the following are examples of federal government decisions:

                     (a)  the Executive Council;

                     (b)  the Cabinet or a committee of the Cabinet;

                     (c)  a Minister or Ministers;

                     (d)  a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) or a subsidiary of a Commonwealth entity (within the meaning of that Act);

                     (e)  a Commonwealth company (within the meaning of the Public Governance, Performance and Accountability Act 2013);

                      (f)  an individual in the course of performing his or her functions in relation to a person or body mentioned in an above paragraph.

             (4)  For the purposes of paragraph (1)(b) and subsection (3), a reference to a decision includes a decision of any kind in relation to any matter, including administrative, legislative and policy matters:

                     (a)  whether or not the decision is final; and

                     (b)  whether or not the decision is a formal decision.

Examples of processes in relation to a registered political party

             (5)  For the purposes of paragraph (1)(d), the following are examples of processes in relation to a registered political party:

                     (a)  processes relating to the party’s:

                              (i)  constitution; or

                             (ii)  platform; or

                            (iii)  policy on any matter of public concern; or

                            (iv)  administrative or financial affairs; or

                             (v)  membership; or

                            (vi)  relationship with foreign principals within the meaning of paragraph (a), (b) or (c) of the definition of foreign principal in section 10, or with bodies controlled by such foreign principals;

                     (b)  the conduct of the party’s campaign in relation to a federal election or a designated vote;

                     (c)  the selection or endorsement of the party’s candidates in relation to a federal election;

                     (d)  the allocation of the party’s preferences in relation to a federal election;

                     (e)  the selection (however done) of officers of the party’s executive or delegates to party conferences;

                      (f)  the election of a person to be the leader of the party in the Parliament of the Commonwealth;

                     (g)  the selection (however done) of persons to be:

                              (i)  Ministers; or

                             (ii)  shadow Ministers or party spokespersons (however described) in relation to the Commonwealth.

Examples of processes in relation to independent members of Parliament and candidates

             (6)  For the purposes of paragraphs (1)(e) and (f), the following are examples of processes in relation to a person mentioned in those paragraphs:

                     (a)  processes relating to the person’s:

                              (i)  platform; or

                             (ii)  policy on any matter of public concern; or

                            (iii)  administrative or financial affairs in his or her capacity as a member of the Parliament or candidate in a federal election; or

                            (iv)  relationship with foreign principals within the meaning of paragraph (a), (b) or (c) of the definition of foreign principal in section 10, or with bodies controlled by such foreign principals;

                     (b)  the conduct of the person’s campaign in relation to a federal election or designated vote;

                     (c)  the allocation of the person’s preferences in relation to a federal election.

13  Communications activity

             (1)  A person undertakes communications activity if the person communicates or distributes information or material.

             (2)  For the purposes of subsection (1), a reference to information or materials includes information or materials in any form, including oral, visual, graphic, written, electronic, digital and pictorial forms.

             (3)  Despite subsection (1), a broadcaster, or a carriage service provider (within the meaning of section 87 of the Telecommunications Act 1997), does not undertake communications activity in relation to information or materials only because:

                     (a)  the broadcaster broadcasts the information or materials; or

                     (b)  the carriage service provider supplies the listed carriage service (within the meaning of section 16 of the Telecommunications Act 1997) used to communicate the information or materials.

             (4)  Despite subsection (1), the publisher of a periodical does not undertake communications activity in relation to information or materials only because the publisher publishes the information or materials.

             (5)  A periodical means an issue (however described) of a newspaper, magazine, journal, newsletter or other similar publication:

                     (a)  whether published in print or electronic form; and

                     (b)  whether issues are published at regular or irregular intervals; and

                     (c)  whether the publication is for sale or distributed without charge.

14  Purpose of activity

                   The purpose of an activity may be determined by having regard to any one or more of the following:

                     (a)  the intention or belief of the person undertaking the activity;

                     (b)  the intention of any foreign principal on whose behalf the activity is undertaken;

                     (c)  all of the circumstances in which the activity is undertaken.

Note:          The purpose of an activity is relevant for the purposes of certain registrable activities (see sections 12 and 21) and for the purposes of the exemptions in Division 4 of Part 2.

Part 2Registration under the scheme

Division 1Simplified outline of this Part

15  Simplified outline of this Part

A person may become liable to register under the scheme:

       (a)     if the person undertakes registrable activities on behalf of a foreign principal (even if the person only does so once); or

      (b)     if the person enters an arrangement with a foreign principal to undertake registrable activities on behalf of the foreign principal (whether or not the person actually undertakes the activities).

Whether a particular activity is registrable or not depends on who the foreign principal is and the purpose of the activity, and in some cases on whether the person has recently held a senior Commonwealth position (including as a member of Parliament).

Once a person becomes liable to register, the person has 14 days to apply for registration.

The person must register for each foreign principal on whose behalf the person undertakes registrable activities.

In most cases, the person continues to be liable to register in relation to a foreign principal until the person notifies the Secretary otherwise and ceases to have any arrangement with the foreign principal.

Registration usually ends if the person notifies the Secretary that the person has ceased to be liable or if the person fails to annually renew the registration.

There are exemptions to ensure that a person does not have to register under the scheme for certain activities that commonly involve arrangements with foreign principals (for example, diplomatic and consular activities or activities for the purposes of providing humanitarian aid or humanitarian assistance).

Division 2Requirement to register

16  Requirement to register

             (1)  A person who:

                     (a)  becomes liable to register under the scheme in relation to a foreign principal; and

                     (b)  is not already registered under the scheme in relation to the foreign principal;

must apply to the Secretary for registration in relation to the foreign principal, no later than 14 days after becoming liable.

Note:          It is an offence not to register if a person is liable to register (see section 57).

             (2)  The application must be:

                     (a)  in writing; and

                     (b)  in an approved form (if any); and

                     (c)  given in an approved manner (if any); and

                     (d)  accompanied by any information or documents required by the Secretary.

Note:          Charges may be imposed in relation to applications (see section 63).

17  When a person is registered under the scheme

             (1)  If a person makes an application for registration in relation to a foreign principal that complies with subsection 16(2), the person is registered under the scheme, in relation to the foreign principal:

                     (a)  from the day the application is given to the Secretary; and

                     (b)  until the registration ends under section 32.

             (2)  Paragraph (1)(a) applies even if the application is made more than 14 days after the person became liable to register in relation to the foreign principal.

18  Persons who are liable to register

             (1)  If a person:

                     (a)  undertakes an activity on behalf of a foreign principal that is registrable in relation to the foreign principal; or

                     (b)  enters a registrable arrangement with a foreign principal;

the person becomes liable to register under the scheme in relation to the foreign principal.

             (2)  A person who has become liable to register under the scheme in relation to a foreign principal remains liable to register under the scheme in relation to the foreign principal until ceasing to be liable under section 19.

             (3)  To avoid doubt:

                     (a)  paragraph (1)(a) applies even if the person only undertakes an activity once; and

                     (b)  paragraph (1)(b) applies even if the person never undertakes an activity under the arrangement.

19  Ceasing to be liable to register

             (1)  A person ceases to be liable to register in relation to a foreign principal, on a day, if:

                     (a)  the person has given the Secretary a notice in relation to the foreign principal under section 31 (notice of end of liability to register) specifying the day in accordance with subsection 31(3) as the day the person’s registration in relation to the foreign principal is to cease; and

                     (b)  on the day, no registrable arrangement exists between the person and the foreign principal.

Note:          A person must be registered under the scheme before the person can give a notice under section 31.

             (2)  If a person is liable to register under the scheme in relation to a foreign principal only because of being one of the following kinds of persons, the person ceases to be liable to register in relation to the foreign principal the day he or she ceases to be that kind of person:

                     (a)  a recent Cabinet Minister;

                     (b)  a recent Minister or member of Parliament;

                     (c)  a recent holder of a senior Commonwealth position.

Division 3Registrable activities

20  Registrable activities: parliamentary lobbying on behalf of foreign government

                   An activity that a person undertakes on behalf of a foreign government is registrable in relation to the foreign government if:

                     (a)  the activity is parliamentary lobbying in Australia (whether or not the purpose is political or governmental influence); and

                     (b)  the person is not exempt under Division 4 in relation to the activity.

21  Registrable activities: activities in Australia for the purpose of political or governmental influence

             (1)  An activity that a person undertakes on behalf of a foreign principal is registrable in relation to the foreign principal if:

                     (a)  the activity is covered by an item in the table; and

                     (b)  the foreign principal is the kind of foreign principal specified for the activity in the table; and

                     (c)  the person is not exempt under Division 4 in relation to the activity.

 

Activities in Australia for the purpose of political or governmental influence

Item

Activity

Foreign principal

1

Parliamentary lobbying:

(a) in Australia; and

(b) for the purpose of political or governmental influence

(a) a foreign public enterprise; or

(b) a foreign political organisation; or

(c) a foreign business; or

(d) an individual

2

General political lobbying:

(a) in Australia; and

(b) for the purpose of political or governmental influence

any kind of foreign principal

3

Communications activity:

(a) in Australia; and

(b) for the purpose of political or governmental influence

any kind of foreign principal

4

Donor activity:

(a) in Australia; and

(b) for the purpose of political or governmental influence

(a) a foreign government; or

(b) a foreign public enterprise; or

(c) a foreign political organisation

             (2)  A single activity undertaken by a person may be covered by more than one item of the table in subsection (1). If it is, the scheme applies in relation to the activity as covered by each such item.

22  Registrable activities: recent Cabinet Ministers

                   An activity that a person undertakes on behalf of a foreign principal is registrable in relation to the foreign principal if:

                     (a)  the person is a recent Cabinet Minister; and

                     (b)  the foreign principal is not an individual; and

                     (c)  the activity is not registrable in relation to the foreign principal under another provision of this Division; and

                     (d)  the person is not exempt under Division 4 in relation to the activity.

23  Registrable activities: recent Ministers, members of Parliament and other holders of senior Commonwealth positions

                   An activity that a person undertakes on behalf of a foreign principal is registrable in relation to the foreign principal if:

                     (a)  the person is:

                              (i)  a recent Minister or member of Parliament; or

                             (ii)  a recent holder of a senior Commonwealth position; and

                     (b)  the foreign principal is not an individual; and

                     (c)  in undertaking the activity, the person contributes experience, knowledge, skills or contacts gained in the person’s former capacity as a Minister, member of Parliament or holder of a senior Commonwealth position; and

                     (d)  the activity is not registrable in relation to the foreign principal under another provision of this Division; and

                     (e)  the person is not exempt under Division 4 in relation to the activity.

Division 4Exemptions

24  Exemption: humanitarian aid or assistance

                   A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if the activity is, or relates solely to, the provision of humanitarian aid or humanitarian assistance.

25  Exemption: legal advice or representation

                   A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if the activity is solely, or solely for the purposes of, the provision of legal advice or legal representation in judicial, criminal or civil law enforcement inquiries, investigations or proceedings.

26  Exemption: diplomatic, consular or similar activities

             (1)  A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

                     (a)  the foreign principal is a foreign government; and

                     (b)  the person is entitled to privileges and immunities under the Consular Privileges and Immunities Act 1972, the Diplomatic Privileges and Immunities Act 1967 or the Overseas Missions (Privileges and Immunities) Act 1995; and

                     (c)  the activity is registrable in relation to the foreign principal:

                              (i)  within the meaning of section 20 (parliamentary lobbying on behalf of a foreign government); or

                             (ii)  within the meaning of section 21 (activities in Australia for the purpose of political or governmental influence); and

                     (d)  undertaking the activity is within the scope of the functions that, under the Act mentioned in paragraph (b), entitle the person to the privileges and immunities conferred by the Act.

             (2)  A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

                     (a)  the foreign principal is a foreign government; and

                     (b)  the person is a UN or associated person within the meaning of Division 71 of the Criminal Code (see subsection 71.23(1) of the Code); and

                     (c)  undertaking the activity is within the scope of the functions that the person undertakes in the person’s capacity as such a person.

27  Exemption: religion

             (1)  A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

                     (a)  the foreign principal is a foreign government; and

                     (b)  the activity is solely, or solely for the purposes of, acting in good faith in accordance with the doctrines, tenets, beliefs or teachings of the particular religion of the foreign government.

             (2)  Subsection (1) does not apply in relation to activities that are registrable in relation to the foreign principal within the meaning of:

                     (a)  section 22 (recent Cabinet Ministers); or

                     (b)  section 23 (recent Ministers, members of Parliament and other holders of senior Commonwealth positions).

28  Exemption: news media

             (1)  A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

                     (a)  the foreign principal is:

                              (i)  a foreign business; or

                             (ii)  an individual; and

                     (b)  the activity is solely, or solely for the purposes of, reporting news, presenting current affairs or expressing editorial content in news media.

             (2)  Subsection (1) does not apply in relation to activities that are registrable in relation to the foreign principal within the meaning of:

                     (a)  section 22 (recent Cabinet Ministers); or

                     (b)  section 23 (recent Ministers, members of Parliament and other holders of senior Commonwealth positions).

29  Exemption: commercial or business pursuits

Commercial negotiations

             (1)  A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

                     (a)  the foreign principal is:

                              (i)  a foreign business; or

                             (ii)  an individual; and

                     (b)  the activity is solely, or solely for the purposes of, the pursuit of bona fide business or commercial interests in relation to preparing to negotiate, negotiating, or concluding, a contract for the provision of goods or services; and

                     (c)  the activity in no way relates to any of the following:

                              (i)  national security;

                             (ii)  defence;

                            (iii)  public infrastructure within the meaning of Division 82 of the Criminal Code.

Person employed by or operating under name of foreign principal

             (2)  A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

                     (a)  the foreign principal is:

                              (i)  a foreign public enterprise; or

                             (ii)  a foreign business; and

                     (b)  the activity is a commercial or business pursuit:

                              (i)  undertaken by an individual in his or her capacity as an employee of the foreign principal; or

                             (ii)  undertaken by the person under the name of the foreign principal.

30  Exemption: prescribed circumstances

                   A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal in the circumstances prescribed by the rules for the purposes of this section.

Division 5End of registration

31  Notice of end of liability to register

             (1)  A person who is registered under the scheme in relation to a foreign principal may give the Secretary a notice under this section if the person is satisfied that:

                     (a)  the person has ceased to undertake activities on behalf of the foreign principal that are registrable in relation to the foreign principal; and

                     (b)  there is no registrable arrangement in existence between the person and the foreign principal.

Note 1:       If a person gives this notice, the person’s registration in relation to the foreign principal ends (see section 32).

Note 2:       If a person gives this notice while a registrable arrangement is still in existence between the person and the foreign principal:

(a)    the person continues to be liable to register despite the notice (see subsection 19(1)); and

(b)    the person may commit an offence under this Act (see section 57) and under the Criminal Code (see section 137.1 of the Code).

             (2)  The notice must be:

                     (a)  in writing; and

                     (b)  in an approved form (if any); and

                     (c)  given in an approved manner (if any); and

                     (d)  accompanied by any information or documents required by the Secretary.

             (3)  The notice must specify a day as the day the person’s registration in relation to the foreign principal is to cease. The day:

                     (a)  must not be earlier than the day the notice is given; and

                     (b)  must not be later than the last day of the next renewal period for the registration (or, if the notice is given during a renewal period, the last day of that renewal period).

32  End of registration

                   The registration of a person under the scheme in relation to a foreign principal ends on the earliest of the following days:

                     (a)  the day specified under subsection 31(3) in a notice given by the person under that section for the registration (notice of end of liability to register);

                     (b)  if the person is required to renew the registration under section 39 and does not do so—the first day after the end of the renewal period for the registration;

                     (c)  in circumstances prescribed by the rules—the day prescribed by the rules.

Part 3Responsibilities of registrants under the scheme

Division 1Simplified outline of this Part

33  Simplified outline of this Part

A registrant has various responsibilities under the scheme. In general terms, the responsibilities are to:

       (a)     promptly report any material changes affecting the registration and any donor activity undertaken on behalf of the foreign principal; and

      (b)     during the voting period for a federal election or designated vote—review the currency of information provided by the registrant and promptly report about certain registrable activities undertaken during the voting period; and

       (c)     make disclosures when undertaking communications activity on behalf of the foreign principal; and

      (d)     renew registration annually for so long as the person remains liable to register under the scheme; and

       (e)     keep proper records.

Division 2Reporting to the Secretary

34  Reporting material changes in circumstances

             (1)  If a person who is registered under the scheme in relation to a foreign principal becomes aware that information provided to the Secretary for the purposes of the registration:

                     (a)  is, or will become, inaccurate or misleading in a material particular; or

                     (b)  omits, or will omit, any matter or thing without which the information is or will be misleading;

the registrant must give the Secretary a notice correcting the inaccuracy or misleading impression.

Note:          It is an offence for a registrant not to give this notice (see subsection 58(1)). It is also an offence under the Criminal Code to give false or misleading information in compliance with a law of the Commonwealth (see section 137.1 of the Code).

             (2)  The notice must be given before the end of the period of 14 days after the day the person becomes aware of the matter.

             (3)  The notice must be:

                     (a)  in writing; and

                     (b)  in an approved form (if any); and

                     (c)  given in an approved manner (if any); and

                     (d)  accompanied by any information or documents required by the Secretary.

             (4)  The following are examples of circumstances in which a person who is registered in relation to a foreign principal must give a notice to the Secretary under this section:

                     (a)  the person starts to undertake another kind of registrable activity on behalf of the foreign principal;

                     (b)  another kind of registrable activity is added to the activities the person is to undertake under an arrangement with the foreign principal;

                     (c)  the person ceases to be exempt under Division 4 of Part 2 in relation to an activity the person undertakes on behalf of the foreign principal;

                     (d)  consideration starts to be paid, or there is a change in consideration payable, to the person in relation to registrable activities undertaken on behalf of the foreign principal.

             (5)  Subsection (1) does not apply in relation to information that would, apart from this subsection, be required to be included in a notice given under this section, if the information has been included in a notice given in accordance with:

                     (a)  section 36 (reporting on registration review when voting period begins); or

                     (b)  section 37 (reporting registrable activity during voting periods).

This subsection applies even if the notice under this section was required to be given before the notice under section 36 or 37.

Note:          A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).

35  Reporting donor activity in Australia for the purpose of political or governmental influence (other than in voting period)

             (1)  If:

                     (a)  a person is registered under the scheme in relation to a foreign principal; and

                     (b)  the person undertakes donor activity on behalf of the foreign principal; and

                     (c)  the donor activity is registrable in relation to the foreign principal within the meaning of section 21 (activity in Australia for the purpose of political or governmental influence); and

                     (d)  the total value of the money or things of value disbursed in the course of the donor activity:

                              (i)  reaches the electoral donations threshold; or

                             (ii)  reaches a multiple of that threshold;

the person must give the Secretary a notice specifying the total value reached.

Note:          It is an offence for a registrant not to give this notice (see subsection 58(1)). It is also an offence under the Criminal Code to give false or misleading information in compliance with a law of the Commonwealth (see section 137.1 of the Code).

             (2)  The notice must be given before the end of the period of 14 days after the day the total value reaches the threshold or multiple mentioned in paragraph (1)(d).

             (3)  The notice must be:

                     (a)  in writing; and

                     (b)  in an approved form (if any); and

                     (c)  given in an approved manner (if any); and

                     (d)  accompanied by any information or documents required by the Secretary.

             (4)  This section does not apply if the total value reaches the threshold or multiple mentioned in paragraph (1)(d) on a day in the voting period for a federal election or designated vote.

Note:          In this case see section 37 instead.

36  Reporting on registration review when voting period begins

             (1)  If a voting period begins for a federal election (other than a by‑election) or for a designated vote, a person who is registered under the scheme in relation to a foreign principal must:

                     (a)  review the information provided by the person to the Secretary in relation to the registration; and

                     (b)  give the Secretary a notice in relation to the information:

                              (i)  confirming that the registration is up to date; or

                             (ii)  if it is not—updating any information.

Note:          It is an offence for a registrant not to give this notice (see subsection 58(1)). It is also an offence under the Criminal Code to give false or misleading information in compliance with a law of the Commonwealth (see section 137.1 of the Code).

             (2)  The notice must be given before the end of the period of 14 days after the voting period begins.

             (3)  The notice must be:

                     (a)  in writing; and

                     (b)  in an approved form (if any); and

                     (c)  given in an approved manner (if any); and

                     (d)  accompanied by any information or documents required by the Secretary.

             (4)  Subsection (1) does not apply if the person applied for the registration under section 16, or renewed the registration under section 39, less than 14 days before the voting period began.

37  Reporting registrable activity during voting periods

             (1)  If:

                     (a)  a person is registered under the scheme in relation to a foreign principal; and

                     (b)  the person undertakes an activity on behalf of the foreign principal at any time in the voting period for a federal election (other than a by‑election) or for a designated vote; and

                     (c)  subsection (2) or (3) applies in relation to the activity; and

                     (d)  the activity relates to the federal election or the designated vote;

the person must give the Secretary a notice in relation to the activity.

Note:          It is an offence for a registrant not to give this notice (see subsection 58(1)). It is also an offence under the Criminal Code to give false or misleading information in compliance with a law of the Commonwealth (see section 137.1 of the Code).

             (2)  This subsection applies in relation to the activity if the activity is registrable in relation to the foreign principal within the meaning of:

                     (a)  section 20 (parliamentary lobbying on behalf of a foreign government); or

                     (b)  section 21 (activities in Australia for the purpose of political or governmental influence), other than donor activity.

             (3)  This subsection applies in relation to donor activity if:

                     (a)  the donor activity is registrable in relation to the foreign principal within the meaning of section 21 (activities in Australia for the purpose of political or governmental influence); and

                     (b)  the total value of the money or things of value disbursed in the course of the donor activity reaches the threshold or multiple mentioned in paragraph 35(1)(d) in the voting period.

             (4)  The notice must be given before the end of the period of 7 days after:

                     (a)  if subsection (2) applies in relation to the activity—the day the person undertakes the activity; or

                     (b)  if subsection (3) applies in relation to the activity—the day the threshold or multiple is reached.

             (5)  The notice must be:

                     (a)  in writing; and

                     (b)  in an approved form (if any); and

                     (c)  given in an approved manner (if any); and

                     (d)  accompanied by any information or documents required by the Secretary.

Division 3Other responsibilities

38  Disclosure in communications activity

             (1)  If:

                     (a)  a person is registered under the scheme in relation to a foreign principal; and

                     (b)  the person undertakes communications activity on behalf of the foreign principal; and

                     (c)  the communications activity is registrable in relation to the foreign principal within the meaning of section 21 (activity in Australia for the purpose of political or governmental influence);

the person must make a disclosure about the foreign principal in accordance with rules made for the purposes of subsection (2).

Note:          It is an offence for a registrant not to make the disclosure (see subsection 58(2)).

             (2)  The rules may prescribe any or all of the following:

                     (a)  instances of communications activity;

                     (b)  when and how disclosures are to be made in relation to instances of communications activity;

                     (c)  the content, form and manner of disclosures;

                     (d)  circumstances in which a person is exempt from making a disclosure.

39  Annual renewal of registration

             (1)  By the end of the renewal period each year for a person’s registration in relation to a foreign principal, the person must either:

                     (a)  if the person remains liable to register in relation to the foreign principal—renew the registration; or

                     (b)  give the Secretary a notice under section 31 (notice of end of liability to register).

Note 1:       It is an offence for a registrant not to renew if still liable to register (see section 57).

Note 2:       Charges may be imposed in relation to renewals (see section 63).

             (2)  A renewal must be:

                     (a)  in writing; and

                     (b)  in an approved form (if any); and

                     (c)  given in an approved manner (if any); and

                     (d)  accompanied by any information or documents required by the Secretary.

             (3)  The renewal period for a person’s registration in relation to a foreign principal is:

                     (a)  the month beginning on either:

                              (i)  the anniversary of the day the person applied (or most recently applied) under section 16 for registration in relation to the foreign principal; or

                             (ii)  if another day is specified under paragraph (4)(a)—that other day; or

                     (b)  if an extended period is specified under paragraph (4)(b)—that extended period.

             (4)  On request by the person made in writing, the Secretary may, in writing:

                     (a)  if satisfied it is appropriate to align renewal periods for registrations of a person registered in relation to more than one foreign principal—specify a day for the registration for the purposes of subparagraph (3)(a)(ii); or

                     (b)  if satisfied that exceptional circumstances exist—specify an extended period for the registration, for a specified year, for the purposes of paragraph (3)(b).

             (5)  An instrument made under subsection (4) is not a legislative instrument.

40  Keeping records

             (1)  A person who is registered under the scheme in relation to a foreign principal must keep records of the matters mentioned in subsection (2):

                     (a)  while registered under the scheme in relation to the foreign principal; and

                     (b)  until the end of 5 years after the registration ends.

Note:          Certain conduct in relation to records is an offence (see subsection 58(3) and section 61).

             (2)  The matters are the following:

                     (a)  registrable activities the person undertakes on behalf of the foreign principal;

                     (b)  benefits provided to the person by the foreign principal;

                     (c)  information or material forming part of any communications activity that is registrable in relation to the foreign principal;

                     (d)  any registrable arrangement between the person and the foreign principal;

                     (e)  other information or material communicated or distributed in Australia on behalf of the foreign principal.

Part 4Obtaining and handling scheme information

Division 1Simplified outline of this Part

41  Simplified outline of this Part

The Secretary must keep a register of information obtained under the scheme.

The Secretary has the power to obtain information from any person if the Secretary reasonably believes the person has information relevant to the scheme.

Some scheme information will be made publicly available (mainly, the names of registrants and foreign principals and descriptions of the registrable activities being undertaken).

Other scheme information must be handled in accordance with the Privacy Act 1988, Part 5.6 of the Criminal Code (secrecy of information) and the authorisations set out in Division 4.

Division 2Register of scheme information

42  Secretary must keep a register

             (1)  The Secretary must keep a register of information in relation to the scheme.

             (2)  The Secretary must include on the register the following information and documents for each person who is registered in relation to a foreign principal:

                     (a)  the name of the person and the foreign principal;

                     (b)  the application for the registration and any accompanying information or documents;

                     (c)  any notices given by the person in accordance with Division 2 of Part 3 (reporting to the Secretary) and any accompanying information or documents;

                     (d)  any renewal of the registration and any accompanying information or documents;

                     (e)  a record of any other communications between the person and the Secretary;

                      (f)  any information prescribed by the rules for the purposes of paragraph 43(1)(c) in relation to registrants and not mentioned in another paragraph of this subsection;

                     (g)  any other information or documents the Secretary considers appropriate.

             (3)  The Secretary must also include the following information and documents on the register:

                     (a)  any notices given by the Secretary to a person other than a registrant under:

                              (i)  section 45 (notice requiring information to satisfy Secretary whether person is liable to register under the scheme); or

                             (ii)  section 46 (notice requiring information relevant to scheme);

                            and any responses received;

                     (b)  any information prescribed by the rules for the purposes of paragraph 43(1)(c) (other than in relation to registrants) and not mentioned in another paragraph of this subsection;

                     (c)  any other information or documents the Secretary considers appropriate.

43  Certain information to be made publicly available

             (1)  The Secretary must make available to the public, on a website, the following information in relation to each person registered in relation to a foreign principal:

                     (a)  the name of the person and the foreign principal;

                     (b)  a description of the kind of registrable activities the person undertakes on behalf of the foreign principal;

                     (c)  any other information prescribed by the rules for the purposes of this paragraph.

             (2)  Despite subsection (1), the Secretary may decide not to make particular information available to the public if the Secretary is satisfied that the information:

                     (a)  is commercially sensitive; or

                     (b)  affects national security; or

                     (c)  is of a kind prescribed by the rules for the purposes of this subsection.

Note:          A registrant who considers that information is commercially sensitive can specify this when giving the information.

             (3)  The rules may prescribe circumstances in which the Secretary is to remove publicly available information from the website.

44  Secretary may correct or update information in the register

                   The Secretary may correct or update information in the register.

Division 3Secretary’s powers to obtain information and documents

45  Notice requiring information to satisfy Secretary whether person is liable to register under the scheme

             (1)  This section applies if:

                     (a)  the Secretary reasonably suspects that a person might be liable to register under the scheme in relation to the foreign principal; and

                     (b)  the person is not registered under the scheme in relation to that foreign principal.

             (2)  The Secretary may, by written notice given to the person, require the person:

                     (a)  to give to the Secretary, within the period and in the manner and form specified in the notice, any information that may satisfy the Secretary as to whether the person is liable to register in relation to the foreign principal; or

                     (b)  to produce to the Secretary, within the period and in the manner and form specified in the notice, any documents that may satisfy the Secretary as to whether the person is liable to register in relation to the foreign principal; or

                     (c)  to make copies of any such documents and to produce to the Secretary, within the period and in the manner specified in the notice, those copies.

Note:          It is an offence not to comply with the notice (see section 59).

             (3)  The period specified in the notice must be a period of at least 14 days after the notice is given.

             (4)  The Secretary may, on request by the person, extend the period by written notice given to the person.

             (5)  Before giving a person a notice under subsection (2), the Secretary must have regard to the costs, in complying with any requirement in the notice, that would be likely to be incurred by the person.

             (6)  Subsection (5) does not limit the matters to which regard may be had.

             (7)  The notice must set out the effect of section 60 of this Act and sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).

46  Notice requiring information relevant to scheme

             (1)  This section applies if the Secretary reasonably believes that a person (whether or not a registrant) has information or a document that is relevant to the operation of the scheme.

             (2)  The Secretary may, by written notice given to the person, require the person:

                     (a)  to give to the Secretary, within the period and in the manner and form specified in the notice, any such information; or

                     (b)  to produce to the Secretary, within the period and in the manner specified in the notice, any such documents; or

                     (c)  to make copies of any such documents and to produce to the Secretary, within the period and in the manner specified in the notice, those copies.

Note:          It is an offence not to comply with the notice (see section 59).

             (3)  The period specified in the notice must be a period of at least 14 days after the notice is given.

             (4)  The Secretary may, on request by the person, extend the period by written notice given to the person.

             (5)  Before giving a person a notice under subsection (2), the Secretary must have regard to the costs, in complying with any requirement in the notice, that would be likely to be incurred by the person.

             (6)  Subsection (5) does not limit the matters to which regard may be had.

             (7)  The notice must set out the effect of section 60 of this Act and sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).

47  Self‑incrimination

             (1)  A person is not excused from giving information or producing a document or a copy of a document under section 45 or 46 on the ground that the information or the production of the document or copy might tend to incriminate the person or expose the person to a penalty.

             (2)  However, in the case of an individual:

                     (a)  the information given or the document or copy produced; and

                     (b)  giving the information or producing the document or copy; and

                     (c)  any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or copy;

is not admissible in evidence against the individual in criminal proceedings, other than proceedings for an offence against section 60 of this Act, or section 137.1 or 137.2 of the Criminal Code that relates to this Division (false or misleading information or documents), or in civil proceedings.

48  Copies of documents

             (1)  The Secretary may inspect a document or copy produced in compliance with a notice given under section 45 or 46 and may make and retain copies of such a document.

             (2)  The Secretary may retain possession of a copy of a document produced in compliance with a notice given under section 45 or 46.

49  Retention of documents

             (1)  The Secretary may take, and retain for as long as is necessary, possession of a document produced in compliance with a notice given under section 45 or 46.

             (2)  The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Secretary to be a true copy.

             (3)  A certified copy:

                     (a)  may be used by the Secretary if the Secretary returns possession of the original document to the person otherwise entitled to possession of it; and

                     (b)  in any case—must be received in all courts and tribunals as evidence as if it were the original.

             (4)  Until a certified copy is supplied, the Secretary must, at such times and places as he or she thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of the document.

Division 4Communicating and dealing with scheme information

50  Scheme information

                   Information is scheme information if the information:

                     (a)  is obtained by a scheme official in the course of performing functions or exercising powers under the scheme; or

                     (b)  was information to which paragraph (a) applied and is obtained by a person by way of a communication authorised under this Division.

51  Scheme officials

Definition

             (1)  Each of the following is a scheme official:

                     (a)  the Secretary;

                     (b)  an APS employee in the Department:

                              (i)  to whom a function or power is delegated under section 67; or

                             (ii)  whose functions otherwise include functions in relation to the scheme;

                     (c)  any other person who performs functions in relation to the scheme under an agreement with the Commonwealth.

Evidentiary certificate

             (2)  The Minister may sign a certificate stating that a specified person is, or was at a specified time, a scheme official.

             (3)  For the purposes of proceedings for an offence against this Act, or against Part 7.4 of the Criminal Code (false or misleading statements) in relation to this Act, a certificate signed by the Minister under this section is prima facie evidence of the matters certified in it.

52  Authorisation—purposes of scheme

                   A scheme official may communicate or otherwise deal with scheme information:

                     (a)  for the purposes of performing functions or exercising powers under the scheme; or

                     (b)  otherwise in the course of performing the scheme official’s functions in relation to the scheme.

53  Authorisation—other purposes

             (1)  The Secretary may communicate scheme information, for a purpose specified in an item in column 1 of the table, to a person specified for that purpose in column 2 of the table.

 

Authorisation for Secretary to communicate scheme information

Item

Column 1
Communication for this purpose:

Column 2
May be made to:

1

an enforcement related activity of an enforcement body within the meaning of the Privacy Act 1988

the enforcement body

2

the protection of public revenue

any of the following that has functions in relation to the purpose:

(a) a Department, agency or authority of the Commonwealth, a State or a Territory;

(b) an Australian police force

3

the protection of security within the meaning of the Australian Security Intelligence Organisation Act 1979

any of the following that has functions in relation to the purpose:

(a) a Department, agency or authority of the Commonwealth, a State or a Territory;

(b) an Australian police force

4

a purpose prescribed by the rules

a person prescribed by the rules

             (2)  The Minister must consult the Information Commissioner before making rules for the purposes of item 4 of the table in subsection (1).

54  Authorisation—secondary communication of or dealing with information

                   A person may communicate or otherwise deal with scheme information if:

                     (a)  the person obtains the information in the person’s capacity as a person, or as an employee or official of a person, to whom information is communicated under this Division (including this section); and

                     (b)  the person communicates or otherwise deals with the information for the purposes for which the information was obtained by the person to whom it was communicated.

55  Authorisation—information publicly available

                   A person may communicate or otherwise deal with scheme information if the information has already been communicated or made available to the public with the authority of the Commonwealth (including under section 43 (certain information to be made publicly available) or 69 (annual report)).

Part 5Enforcement

  

56  Simplified outline of this Part

It is a criminal offence for a person who is liable to register not to be registered under the scheme.

Criminal offences also apply for failing to fulfil responsibilities under the scheme or providing false or misleading information in purported fulfilment of responsibilities, and for destroying records.

It is also a criminal offence not to comply with a notice from the Secretary requiring information in relation to the scheme.

57  Failure to apply for or maintain registration

Intentional omission to apply or renew and registrable activity undertaken

             (1)  A person commits an offence if:

                     (a)  the person knows that the person is required:

                              (i)  to apply for registration under the scheme in relation to the foreign principal by the end of a period; or

                             (ii)  to renew the person’s registration relation to the foreign principal by the end of a period; and

                     (b)  the person intentionally omits to do so; and

                     (c)  the person undertakes an activity on behalf of the foreign principal after the end of the period; and

                     (d)  the activity is registrable in relation to the foreign principal.

Penalty:  Imprisonment for 7 years.

Section 31 notice given knowing arrangement still exists and undertaking registrable activity

             (2)  A person commits an offence if:

                     (a)  the person gives the Secretary a notice under section 31 (notice of end of liability to register) for the person’s registration under the scheme in relation to the foreign principal; and

                     (b)  at the time the person does so a registrable arrangement exists between the person and the foreign principal; and

                     (c)  the person knows that the registrable arrangement will still be in existence on the day specified in the notice under subsection 31(3) as the day the person’s registration in relation to the foreign principal is to cease; and

                     (d)  the person undertakes an activity on behalf of the foreign principal after that day; and

                     (e)  the activity is registrable in relation to the foreign principal.

Penalty:  Imprisonment for 7 years.

Reckless omission to apply or renew and registrable activity undertaken

             (3)  A person commits an offence if:

                     (a)  the person knows that the person is required:

                              (i)  to apply for registration under the scheme in relation to the foreign principal by the end of a period; or

                             (ii)  to renew the person’s registration in relation to the foreign principal by the end of a period; and

                     (b)  the person is reckless as to whether the person has omitted to do so; and

                     (c)  the person undertakes an activity on behalf of the foreign principal after the end of the period; and

                     (d)  the activity is registrable in relation to the foreign principal.

Penalty:  Imprisonment for 5 years.

Intentional or reckless omission to apply or renew whether or not registrable activity undertaken

             (4)  A person commits an offence if:

                     (a)  the person knows that the person is required:

                              (i)  to apply for registration under the scheme in relation to the foreign principal by the end of a period; or

                             (ii)  to renew the person’s registration relation to the foreign principal by the end of a period; and

                     (b)  the person intentionally omits, or is reckless as to whether the person has omitted, to do so.

Penalty:  Imprisonment for 12 months.

Section 31 notice given knowing arrangement still exists whether or not registrable activity undertaken

             (5)  A person commits an offence if:

                     (a)  the person gives the Secretary a notice under section 31 (notice of end of liability to register) for the person’s registration under the scheme in relation to the foreign principal; and

                     (b)  at the time the person does so a registrable arrangement exists between the person and the foreign principal; and

                     (c)  the person knows that the registrable arrangement will still be in existence on the day specified in the notice under subsection 31(3) as the day the person’s registration in relation to the foreign principal is to cease.

Penalty:  Imprisonment for 12 months.

58  Failure to fulfil responsibilities under the scheme

Failure to fulfil reporting responsibility

             (1)  A person commits an offence of strict liability if:

                     (a)  the person is required to give a notice under a provision of Division 2 of Part 3 (reporting to the Secretary); and

                     (b)  the person fails to give the notice in accordance with the provision.

Penalty:  60 penalty units.

Failure to fulfil responsibility to disclose in communications activity

             (2)  A person commits an offence of strict liability if:

                     (a)  the person is required to make a disclosure in accordance with the rules under section 38 (disclosure in communications activity); and

                     (b)  the person fails to make the disclosure in accordance with the rules.

Penalty:  60 penalty units.

Failure to keep records

             (3)  A person commits an offence of strict liability if:

                     (a)  the person is required to keep records of a matter under section 40 (keeping records) for a period; and

                     (b)  the person fails to do so.

Penalty:  60 penalty units.

59  Failure to comply with notice requiring information

             (1)  A person commits an offence if:

                     (a)  the person is given a notice under section 45 or 46; and

                     (b)  the person fails to comply with the notice:

                              (i)  by the end of the period specified in the notice; or

                             (ii)  if the Secretary extends that period—by the end of the extended period.

Penalty:  Imprisonment for 6 months.

             (2)  Subsection (1) does not apply if:

                     (a)  the person fails to comply with the notice only because the person does not provide the information or a document within the applicable period; and

                     (b)  the person took all reasonable steps to provide the information or document within that period; and

                     (c)  the person provides the information or document as soon as practicable after the end of that period.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

60  False or misleading information or documents

Offence

             (1)  A person commits an offence if:

                     (a)  the person gives information or produces a document to the Secretary; and

                     (b)  the person does so in response to a notice given to the person under section 45 (notice requiring information to satisfy Secretary whether person is liable to register) or 46 (notice requiring information relevant to scheme); and

                     (c)  the person does so knowing that:

                              (i)  the information or document is false or misleading; or

                             (ii)  the information omits any matter or thing without which the information is misleading.

Penalty:  Imprisonment for 5 years.

Defence—not material

             (2)  Subsection (1) does not apply as a result of subparagraph (1)(c)(i) if the information or document is not false or misleading in a material particular.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (3)  Subsection (1) does not apply as a result of subparagraph (1)(c)(ii) if the information did not omit any matter or thing without which the information is misleading in a material particular.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

Defence—not informed of offence

             (4)  Subsection (1) does not apply if, before the person gave the information or produced the document to the Secretary, the Secretary did not take reasonable steps to inform the person of the existence of the offence against subsection (1).

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (5)  For the purposes of subsection (4), it is sufficient if the following form of words is used: “Giving false or misleading information or documents is an offence”.

Defence—statement about false or misleading document

             (6)  Subsection (1) does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate:

                     (a)  stating that the document is, to the knowledge of the first‑mentioned person, false or misleading in a material particular; and

                     (b)  setting out, or referring to, the material particular in which the document is, to the knowledge of the first‑mentioned person, false or misleading.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

61  Destruction etc. of records

             (1)  A person commits an offence if:

                     (a)  under section 40, a registrant is required to keep records (a scheme record); and

                     (b)  the person (whether or not the registrant) does an act, or omits to do an act; and

                     (c)  the person does the act, or omits to do the act, with the intention of avoiding or defeating the object of this Act or any element of the scheme; and

                     (d)  the act or omission results in:

                              (i)  damage to, or the destruction of, a scheme record; or

                             (ii)  the concealment of a scheme record; or

                            (iii)  the registrant being prevented from keeping scheme records.

Penalty:  Imprisonment for 3 years.

             (2)  Absolute liability applies to paragraph (1)(a).

Part 6Miscellaneous

  

62  Simplified outline of this Part

This Part deals with miscellaneous matters, including matters relating to charges payable under the scheme, the treatment of persons who are not legal persons (such as partnerships) and other matters such as delegations, approvals and rule‑making powers.

There is also a requirement for the Minister to report annually to the Parliament about the operation of the scheme, and for the scheme to be reviewed before the end of its first 5 years of operation.

63  Charges

             (1)  A person is liable to pay a charge imposed by the Foreign Influence Transparency Scheme (Charges Imposition) Act 2017 if the person:

                     (a)  makes an application for registration under section 16; or

                     (b)  renews a registration under section 39.

             (2)  Charges are payable to the Commonwealth.

             (3)  The amount of a charge:

                     (a)  is a debt due to the Commonwealth; and

                     (b)  may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction.

             (4)  If an application or renewal is not accompanied by the amount of the charge that the applicant or registrant is liable to pay, then, unless the rules prescribe otherwise, the application or renewal is taken not to have been given to the Secretary.

             (5)  The Secretary may refund a charge, or part of a charge, in the circumstances prescribed by the rules.

             (6)  The rules may prescribe other matters in relation to the payment of charges.

64  Treatment of partnerships

             (1)  The scheme applies to a partnership as if the partnership were a legal person, but with the changes set out in this section.

             (2)  An obligation that would otherwise be imposed on the partnership under the scheme is imposed on each partner instead, but may be discharged by any of the partners.

             (3)  An offence against this Act (including an offence against Chapter 7 of the Criminal Code in relation to this Act) that would otherwise have been committed by the partnership is taken to have been committed by each partner in the partnership, at the time the offence was committed, who:

                     (a)  did the relevant act or made the relevant omission; or

                     (b)  aided, abetted, counselled or procured the relevant act or omission; or

                     (c)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

             (4)  For the purposes of the scheme, a change in the composition of a partnership does not affect the continuity of the partnership.

65  Treatment of other unincorporated bodies

                   The scheme applies to a person that is not a legal person, other than a partnership, as if the person were a legal person, but with the changes prescribed by the rules for that kind of person.

66  Approvals

                   The Secretary may, in writing, approve:

                     (a)  a form (an approved form) for the purposes of a provision of this Act; and

                     (b)  a manner (an approved manner) for giving a notice or renewal under this Act.

67  Delegations

             (1)  The Secretary may, in writing, delegate all or any of his or her functions or powers under this Act to:

                     (a)  an SES employee, or an acting SES employee, in the Department; or

                     (b)  an APS employee who holds, or is acting in, an Executive Level 2 or equivalent position in the Department.

Note:          Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

             (2)  In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Secretary.

68  Agreements

                   The Secretary may, on behalf of the Commonwealth:

                     (a)  enter into a written agreement with a person for the person to perform services in relation to the scheme; and

                     (b)  make payments to the person in accordance with any such agreement.

69  Annual report

             (1)  The Secretary must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operation of the scheme in relation to the financial year.

Note:          See also section 34C of the Acts Interpretation Act 1901.

             (2)  The report must include any matters prescribed by the rules for the purposes of this subsection.

             (3)  Despite subsection (2), the report must not include information that the Secretary is satisfied:

                     (a)  is commercially sensitive; or

                     (b)  affects national security; or

                     (c)  is a kind of information prescribed by the rules for the purposes of subsection 43(2).

Note:          A registrant who considers that information is commercially sensitive can specify this when giving the information.

70  Review of operation of the scheme

             (1)  The Minister must cause a review to be conducted of the operation of the scheme.

             (2)  The review must be conducted before the end of the period of 5 years beginning on the day after this section commences.

             (3)  The person undertaking a review must give the Minister a written report of the review.

             (4)  The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

71  Rules

             (1)  The Minister may, by legislative instrument, make rules prescribing matters:

                     (a)  required or permitted by this Act to be prescribed by the rules; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  To avoid doubt, the rules may not do the following:

                     (a)  create an offence or civil penalty;

                     (b)  provide powers of:

                              (i)  arrest or detention; or

                             (ii)  entry, search or seizure;

                     (c)  impose a tax;

                     (d)  set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

                     (e)  directly amend the text of this Act.

             (3)  Rules that are inconsistent with the regulations have no effect to the extent of the inconsistency, but rules are taken to be consistent with the regulations to the extent that the rules are capable of operating concurrently with the regulations.